This is an appeal from a judgment in favor of the plaintiff, on a trial at the Kings special term.
The plaintiff sought to set aside certain assignments of mortgages, which assignments she had made to the defendants, alleging them to have been without consideration, and to have been obtained from her by false .and fraudulent statements on the part of-the defendants.
The plaintiff is sister to the defendants. Their mother, Lydia Bedell, died on the 20th of December, 1871, leaving a will whereby her property was given to the plaintiff and to Louisa, the plaintiff’s sister, to the exclusion of the brothers. These brothers (being the defendants in this action) threatened to contest the will on the ground of the incapacity of the testatrix, by reason of alleged insanity; and the mortgages were assigned to them after proof of the will, to carry out an agreement of settlement, whereby they withdrew all opposition. The plaintiff consulted several family friends, and they told her the matter of settlement with her brothers had better be arranged among themselves. She testifies that one of the friends seemed inclined to think she ought to divide with the brothers. Her sister Louisa does not contest the settlement; she participated therein, and is satisfied therewith. She testifies that she was willing from the first, and that she thinks her sister, the plaintiff, did it voluntarily of her own free will.
The attending physician testifies that he never stated to the defendants that their mother was insane; the assertion that he did so state is testified by the plaintiff to have been made to her by the defendants and to have influenced her in consenting to the settlement which she now seeks to revoke. Her sister Louisa testifies that the defendants’ talk about their mother’s insanity did not make her believe that she was insane; that Emma, the plaintiff, said she was not insane, and that defendants could not break the' will.
The plaintiff had abundant opportunity to know every fact bearing on the question of her mother’s capacity; the brothers and sisters dwelt with their mother as one family, under the same roof, long before the mother’s death, and at the time thereof and for' some time thereafter.
A brief review of the circumstances attending the making of the will shows activity and secrecy on the part of the plaintiff; the making of the will and the death of the testatrix appear to have happened on the same day, the 20th December, 1871. A lawyer *326was sent for by request of testatrix; the plaintiff says her sister Louisa carried the message. Louisa says she did not. The brothers had a place of business two blocks off, but they were not summoned. Three days afterward one of them asked plaintiff if their mother had not made a will, and she told them “ she did not know any thing about it.” They seem to have ascertained the fact at the surrogate’s office, by the usual citations, or in some other way. The will was proved on the 19th of January, 1872 ; the opposition to the will was pending for some time previous, and friends were consulted; assertions made by the defendants of their mother’s incapacity for the causes stated, and by the plaintiff and her sister to the contrary. The agreement for settlement, whereby the broth- ■ ers were to receive $8,000 of the estate, was made, and in the following month of March, after the will was proven without opposition, and letters testamentary issued, the mortgages in question were assigned by the executors, to the defendants, in execution of the agreement, and in the following month of December, the plaintiff instituted this action. The plaintiff and Mr. Lowry, who appears to have been the family solicitor, were the executors.
The brother, Charles, was at one time the plaintiff’s guardian ; he had an accounting and release in the surrogate’s office about the 4th of November, 1871; before this will was made, and thereafter and until June, 1872, he took charge of the plaintiff’s affairs as an agent, and' then she testifies she discharged him. The following extract from her testimony indicates that she knew as much of her mother’s condition and of the physician’s opinion as any one :
“Q. You knew a will was drawn P A. I supposed it was drawn that afternoon, but I did not see it, and could not say if it was a will. I was not with her myself.
Q. Were you in the room when your mother signed the instrument ? A. I was;
“ Q. Did you see any of the witnesses sign any instrument? A. Yes.
“ Q. Was she perfectly sound in mind ? A. I know nothing about that except what the physician told me from time to time.”
The other sister says she and the plaintiff and Mr. Mareellus were present, and she knew it was a will.
We think, upon a review of the whole case, that the settlement was made for family reasons-and for peace. The assertion of the plaintiff that she was induced to agree to a settlement already voluntarily agreed to by her sister, by reason of any false statement *327made by the defendants, is not sustained. The judge at special term says she discussed the matter with her sister and Mr. Lowry, and deliberately made the assignment; that she did not act in haste ' and was influenced by a meritorious wish to promote family harmony.
There is another view of this case, however, which, upon the law, bars a recovery ; the defendants have foregone and lost their right to contest the will, and the plaintiff cannot restore them to. the position they had before the will was proven.
The plaintiff, by an agreement of settlement, procured the defendants to withdraw their intended opposition to the probate of the. will, and thereupon it was proven and established.' After this the agreement was carried out by the execution of the assignments of mortgages in question. Plaintiff has the benefits conferred and_ the estate bequeathed by the will. If the defendants are now to give up what they received under this agreement, it should be on condition that their right to oppose the will be restored to them, but this cannot be.
The agreement was valid, and whether they would have succeeded in the litigation is not the test. Seaman v. Seaman, 12 Wend. 381. If the members of a family settle among themselves the dispute which may arise touching an inofficious will which is about to be contested and litigated, the settlement ought to be final when its conditions are fully performed.
If a contract is sought to be rescinded for fraud, the party claiming rescission must restore, or offer to restore, that which he has gained by reason of the contract before he can claim its rescission. Sinclair v. Neill, 3 N. Y. Sup. 74; Cobb v. Hatfield, 46 N. Y. 533; Hogan v. Weyer, 5 Hill, 389. And if there can be no restoration, there can be no rescission. Pullman v. Alley, 53 N. Y. 607.
The judgment should be reversed and a new trial granted at special term, costs to abide event.